An Employee’s Right to a Safe Work Environment

With all the misplaced fears and manufactured hysteria about the first Ebola case diagnosed in the US, it is not hard to assume most people are happy they are not health care workers in that Dallas hospital. Unfortunately, it looks like at least one of the nurses caring for the initial victim is testing positive for the disease, and dozens more workers who had direct and indirect contact with the infected individual are being quarantined and monitored for the next couple of weeks. The chance of contracting a virus that is killing more than half of its victims in Western Africa is a high price for anyone to pay for choosing a career in medicine, but that is the risk they assumed when they took the job, right? Not exactly.

While health care workers are used to dealing with all kinds of sicknesses and gore, some things simply fall outside the norm. Expecting emergency room nurses or doctors to be well-versed in caring for highly unusual maladies, such as heavy radiation exposure, exotic poisons and toxins, or pandemic-level diseases previously confined to other continents is unreasonable, if not impossible. Thus, it was not surprising to see the head of the nation’s largest nurses’ union blast the Centers for Disease Control for appearing to blame the now-infected nurse’s own breach of safety protocol for her exposure to the Ebola virus.

As part of the front line for any further cases of Ebola or future pandemics, the nurses’ union was particularly critical of the lack of proper training for such situations. Without sufficient quarantine and decontamination procedures and protocols not only in place, but regularly practiced, they argue, it is the system that fails, not the workers themselves, since they are doing the best they can with the knowledge and resources available. Essentially, the lapses in training make for an unsafe work environment and, now that insufficient protocols appear to be responsible for exposing nurses to Ebola both here and in Spain, it might not be a surprise if some of those front line health care workers and first responders refuse to put themselves at similar risk until the safety training catches up to reality.

But what happens to an employee who refuses to work because of an unsafe or outright dangerous condition? The tidy answer is that, generally, employees are protected under federal and often state law for reprisals or retaliation stemming from their refusal to put themselves in peril on the job. The murkier answer is that there are exceptions to such a blanket rule, most obviously for those in public safety, like police officers and firefighters, since dangerous conditions are pretty much the bread and butter of their jobs.

Adding some uncertainty is the question of whether special arrangements, such as a union, add an extra layer of protection. For example, a unionized commercial airline pilot can unilaterally refuse to fly when he or she deems conditions unsafe without risk to his or her job, whereas a non-union pilot who wants to keep getting a paycheck might be at the mercy of higher-ups who will remain safely on the ground. Interestingly, the Dallas nurses have been interacting with the news media rather anonymously, letting colleagues from around the nation speak for them, which suggests that they would not be entitled to job protections if they publicly spoke out against their employer, even as a stricken co-worker is being thrown under the bus by a hospital facing criticism for a series of errors made with the initial Ebola patient.

For most employees, treading around a pandemic will not fall within the job description. What is considered a dangerous condition in most jobs is more broadly defined, at least by the Occupational Health and Safety Administration (OSHA), which says an employee has the right to refuse to work when a condition clearly presents a risk of death or serious physical harm, and there is insufficient time for OSHA to inspect. Specifically, an employee’s right to refuse a task is protected if all of the following conditions are met:

Where possible, the employee has asked their employer to eliminate the danger, and the employer failed to do so; and

The employee refused to work in “good faith.” This means that they must genuinely believe that an imminent danger exists; and

A reasonable person would agree that there is a real danger of death or serious injury; and

There is not enough time, due to the urgency of the hazard, to get it corrected through regular enforcement channels, such as requesting an OSHA inspection.

Georgia’s Labor Code adds to the protection, saying an “employee is entitled to refuse performance of such labor, assignment or instruction, which contradicts the law or due to insecurity of employment safety conditions creates obvious and substantial danger to the life, health, property or natural environment of such employee or any third party” as long as the worker immediately notifies his or her employer of why he or she is refusing to do the dangerous task.

Hopefully, you will never be in a position where you are forced to risk life or limb just to get your job done, but it is reassuring to know that there are laws designed to protect you from having to make the choice. If, however, you have been the victim of retaliation or discrimination for refusing to perform dangerous tasks or reporting unsafe conditions in Georgia or Tennessee, contact our experienced Atlanta attorneys to protect your rights. Mays & Kerr represents both plaintiffs and defendants in employment matters, including employment discrimination, wage and hour, FMLA, and more. With offices in Atlanta and Nashville, we offer a client-centered philosophy and strive to accomplish our clients’ goals as if they are our own. If you live in Georgia or Tennessee and need an experienced Atlanta employment law attorney, contact us today at 1-877-986-5529.